Bourne v. Davis

Filing 19

Memorandum Opinion and Order...respondent's motion to dismiss granted; petition dismissed as time-barred. COA denied. (Ordered by Judge John McBryde on 9/29/2017) (wrb)

IN THE UNITED STATES DISTRIC
FOR THE NORTHERN DISTRICT 0
FORT WORTH DIVISION
MICHAEL BLAKE BOURNE,

§
§

Petitioner,

§
§

v.

§

No. 4:17-CV-161-A

§

LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,

§
§
§
§
§

Respondent.

§

MEMORANDUM OPINION
and
ORDER

This is a petition for a writ of habeas corpus pursuant to
28 U.S.C.

§

2254 filed by petitioner, Michael Blake Bourne, a

state prisoner incarcerated in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ)
against Lorie Davis, director of TDCJ, respondent. After having
considered the pleadings, state court records, and relief sought
by petitioner, the court has concluded that the petition should
be dismissed as time-barred.
I.

Factual and Procedural History

On April 1, 2009, a jury in the 355th Judicial District
Court of Hood County, Texas, Cause No. CR11038, found petitioner
guilty of aggravated assault with a deadly weapon and assessed

his punishment at 28 years' confinement.

(Clerk's R. at 39. 1 )

Petitioner appealed his conviction, but his first appeal was
dismissed by the Second District Court of Appeals of Texas for
lack of jurisdiction.

(Mem. Op., No. 02-09-138-CR, at 3.) The

Texas Court of Criminal Appeals subsequently granted petitioner
permission to file an out-of-time appeal, and, on December 18,
2014, the Second District Court of Appeals affirmed the trial
court's judgment.

((Mem. Op., Texas Court of Criminal Appeals No.

WR-73,625-02; Mem. Op., No. 02-14-00145-CR at 1.) Petitioner did
not file a petition for discretionary review in the Texas Court
of Criminal Appeals.

(Docket Sheet, No.

02-14-00145-CR at 1.) On

March 28, 2016, petitioner filed a state habeas-corpus
application challenging his conviction, which the Texas Court of
Criminal Appeals denied on January 25, 2017, without written
order on the findings of the trial court. 2 (03State Habeas R. 3 at

1The clerk's record cited to in this opinion refers to the clerk's
record filed in petitioner's second appeal, Bourne v. State, No. 02-14-00145CR.
2Petitioner's state habeas application is deemed filed when placed in
the prison mailing system. Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir.
2013). The application does not provide the date petitioner placed the
document in the prison mailing system, however the ''Inmate's Declaration" was
signed by petitioner on March 28, 2016. (03State Habeas R. at 23.) For
purposes of this opinion, petitioner's state habeas application is deemed
filed on that date,
3 \\03State Habeas R. 11 refers to the record of petitioner's state habeas
application No. WR-73,625-03.

2

23 & "Action Taken.") This federal habeas petition challenging
his Hood County conviction was filed on February 2, 2017. 4
Petitioner raises seven grounds for relief complaining of
ineffective assistance of trial counsel.

(Pet. at 6-7 & Insert.)

Respondent asserts the petition is untimely under the federal
statute of limitations and should be dismissed.

(Resp't's Mot. to

Dismiss at 4-8.)
II.

Statute of Limitations

Title 28, United States Code,

§

2244(d) imposes a one-year

statute of limitations on federal petitions for writ of habeas
corpus filed by state prisoners. Section 2244(d) provides:
(1)
A 1-year period of limitations shall apply to
an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court.
The limitations period shall run from the latest of(A)
the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;
(B)
the date on which the impediment to
filing an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;

4similarlY, petitioner's federal habeas petition is deemed filed when
placed in the prison mailing system. Spotville v. Cain, 149 F.3d 374, 377 (5th
Cir. 1998). Petitioner indicates in the petition that he placed the document
in the prison mailing system on February 2, 2017. (Pet. at 10.)

3

(C)
the date on which the constitutional
right asserted was initially recognized by the
Supreme Court, if that right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
reviewi or
(D)
the date on which the factual predicate
of the claim or claims presented could have been
discovered through the exercise of due diligence.
(2)
The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward any period of limitations under this subsection.
28 u.s.c.

§

2244 (d) (1)- (2).

Under subsection (A), applicable to this case, the
limitations period began to run on the date on which the judgment
of conviction became final by the expiration of the time for
seeking direct review. For purposes of this provision, the
judgment of conviction became final and the one-year limitations
period began to run upon expiration of the time that petitioner
had for filing a timely petition for discretionary review in the
Texas Court of Criminal Appeals on Monday, January 19, 2015, 5 and
closed one year later on January 19, 2016, absent any tolling.
See Tex. R. App. P. 68.2(a); Roberts v. Cockrell, 319 F. 3d 690,

5January 17, 2015 was a Saturday; thus, petitioner would have had until
1
Monday, January 19, 2015, to file a petition for discretionary review.

4

694

(5th Cir. 2003).
Tolling of the limitations period may be appropriate under

the statutory-tolling provision in§ 2244(d) (2) and/or as a
matter equity. Petitioner's state habeas application filed on
March 28, 2016, after limitations had already expired did not
toll limitations under§ 2244(d) (2). Moore v. Cain, 298 F.3d 361,
366-67 (5th Cir. 2002); Scott v. Johnson, 227 F.3d 260, 263

(5th

Cir. 2000). Therefore, the petition is untimely unless petitioner
can demonstrate that equitable tolling is justified.
Equitable tolling is permitted only in rare and exceptional
circumstances when an extraordinary factor beyond a petitioner's
control prevents him from filing in a timely manner or he can
make a convincing showing that he is actually innocent of the
crime for which he was convicted. McQuiggin v. Perkins, -u.s. 133 S. Ct. 1924, 1928 (2013); Holland v. Florida, 560 U.S. 631,
649 (2010) . Petitioner presents no new evidence to meet the
actual-innocence exception. However, in an attempt to trigger
subsection (B) of § 2244 (d) (1) and/or justify equitable tolling,
he asserts that his delay was the result of various state-created
impediments, including prison transfers and intermittent
lockdowns; an inadequate law library and outdated and limited

5

access to legal materials; difficulty obtaining state court
records; lost and/or confiscated personal property; confinement
in administrative segregation; and mental illness.

(Pet. at 9;

Pet'r's Reply at 2-7.) Statutory tolling under§ 2244(d) (2) may
be justified where a prisoner is ignorant of the statute of
limitations governing federal habeas proceedings and is unable to
obtain a copy of the AEDPA from prison authorities. In that
limited circumstance, an inadequate law library may constitute a
state-created impediment under subsection (B) . Egerton v.
Cockrell, 334 F.3d 433, 437

(5th Cir. 2003). Such is not the case

here. Petitioner does not allege, much less prove, that he was
ignorant of the AEDPA statute of limitations. Rather, he
complains about his inability to obtain more access to the law
library and current case law. However, the § 2254 form petition
does not require a petitioner to analyze or cite case law.
Further, while it is possible mental illness can support
equitable tolling, it does not do so as a matter of right. Smith

v. Kelly, 301 F. App'x 375, 2008 WL 5155222, at *2 (5th Cir.
2008). Petitioner asserts that his "mental handicaps" and/or
prescribed medication caused him "difficulty concentrating, made
it hard to understand what [he] read while researching and made

6

[him)

feel unmotivated and discouraged," but that he nevertheless

continued to worked diligently in pursuing post-conviction
relief. However, he fails to allege sufficient facts or adduce
any evidence that his mental condition or any side effects of
medications rendered him incompetent such that he was prevented
from seeking post-conviction relief during the one-year
limitations period. Finally, the remaining circumstances noted by
petitioner are common problems incident to ordinary inmate status
and do not invoke subsection (B) or warrant equitable tolling.
See Egerton v. Cockrell, 334 F. 3d 433, 437
v. Johnson, 227 F.3d 260, 263 n.3

(5th Cir. 2003); Scott

(5th Cir. 2000); Tate v.

Parker, 439 F. App'x 375, 2011 WL 3821122, at *1 (5th Cir. 2011);
Madis v. Edwards, 347 F. App'x 106, 108 (5th Cir. 2009); Dodd v.
United States, 365 F.3d 1273, 1283 (11th Cir. 2004); Jett v.
Stephens, No. SA-13-CV-0757-XR, 2013 WL 5656116, at *3 (W.D.Tex.
Oct. 16, 2013); Scott v. Stephens, No. 4:13-CV-384-A, 2013 WL
3870648204, at *3 (N.D.Tex. July 25, 2013); Clark v. Thaler, No.
4:13-CV-244-A, 2013 1943309, at *2 (N.D.Tex. May 10, 2013).
Therefore, petitioner's federal petition was due on or
before January 19, 2016. His petition, filed on February 2, 2017,
is therefore untimely.

7

For the reasons discussed herein,
It is ORDERED that respondent's motion to dismiss be, and is
hereby, granted and that petitioner's petition for a writ of
habeas corpus pursuant to 28 U.S.C.

§

2254 be, and is hereby,

dismissed as time-barred. Petitioner has not made a showing that
reasonable jurists would question this court's procedural ruling.
Therefore, it is further ORDERED that a certificate of
appealability be, and is hereby, denied.
SIGNED September

2 1'

2017.

DISTRICT JU

8